BOP COVID Blatant Inmate Virus Undercount Show That They Think That No One is Watching

 

First Step Act: New Possibilities for Sentence Relief; DOJ Botches DELTA Response, as Staff Also Suffers; Appellate Updates

 

by Derek Gilna

 

            While we impatiently wait for Congressional action of the plethora of pending sentence relief bills, both the First Step Act (FSA) and the Borden case have been successfully used to cut sentences. While courts battle over what the FSA wording "extraordinary and compelling" means in the context of reducing sentences, the Sixth Circuit, in US v Owens, 996 F.3d 755, (6th Cir. 2021)  has granted relief. Owens had filed for relief from a 105 year 924(c) sentence using 403(a) of FSA and 18 USC 3582(c) based upon sentence disparity and rehabilitation. This followed similar results in the 10th Circuit case of US v McGee, 992 F.3d 1035 (10th Cir. 2021.) Reversed and remanded for resentencing.

One of our favorite PLN commentators also redirected our attention to the possibilities of relief under Borden v. US, 141 S.Ct 1817 (2021). Movants will have the burden to show that they were sentenced under the elements clause of ACCA. One will have to ask what the elements of the prior conviction are, and whether it allows a conviction based upon mere recklessness or negligent conduct, but Borden does NOT apply if it says that the offender knowingly or purposely committed the offense. A timely 2255, a 2241 under the savings clause or perhaps even an FSA motion might be able to get you back into court. Although this is a complicated process, it might also be used in attacking 924(c) sentences.         See also the new case citing Borden,  US v Cardenas, 18-40338, (5th Cir. September 7, 2021). On remand from the Supreme Court, the Fifth Circuit affirmed the district court's judgment as reformed to reflect that defendant was convicted and sentenced under 8 U.S.C. 1326(b)(1). Defendant pleaded guilty of illegally reentering the United States after having been convicted of an aggravated felony, in violation of 8 U.S.C. 1326(b)(2), and was sentenced to 36 months in prison. While his certiorari petition was pending, the Supreme Court decided Borden v. United States, 141 S. Ct. 1817, 1821-22 (2021), which held that a crime capable of commission with a "less culpable mental state than purpose or knowledge," such as "recklessness," cannot qualify as a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). The Court then granted defendant's petition, vacated the Fifth Circuit's judgment, and remanded. On remand, the parties agree that, in light of Borden, defendant should not have been sentenced under section 1326(b)(2) because Texas family violence assault can be committed recklessly. Both parties agree that defendant's conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction on three or more qualifying misdemeanors or a non-aggravated felony. The Fifth Circuit agreed and concluded that reformation without remand is appropriate in this case.           Recent DOJ Covid Dashboard entries show a clear pattern emerging of relatively accurate counts of staff infections and illness and an almost comical undercount of prisoner infection totals. Prison staff have filed federal lawsuits in California seeking hazard pay, and there is still pending an OSHA complaint over working conditions.   Correctional officers' unions have the financial muscle to litigate, and my suspicion is that DOJ is more careful about posting accurate numbers about guard infections as a result. My question is, how is it medically  possible that a prison has 5 guard infections, and only one prisoner infection? DOJ arithmetic.             Another problem is that prisoners see the conditions of their isolation if they complain of symptoms as punishment, since most are cut off from commissary, phones, education, food service, and often put in the SHU. From Alderson: "several inmates were exposed to the positive inmate in one of the units that is the working unit and last night an inmate in my unit had a high fever, throwing up,  and couldn't get out the bed. They took her out last night, lets see if we will all be tested...other inmates are having symptoms but are being quiet about it because they do not want to be isolated... (actually) there are 6 officers/staff and at least 5 inmates with COVID, currently. I say at least because a flight of transfers came in about a week ago and the first inmate with COVID was in general population for 2 days before being isolated."             From Carswell, complaints about undiagnosed and untreated fevers and nausea, and continuing indifference to the suffering: "Like 6 deaths and well over 700 confirmed case wasn't enough amongst all the other ill and corrupt crap. Who has common sense anymore?" Other prisons located in the South continue to report continuing high totals: Beaumont 40 staff, but no prisoners(?) reported on website. Pollock also reports 40 staff that are ill, but amazingly, only 8 prisoners(?)  Aliceville: five cases reported, but many more ill and symptomatic. Coleman Low has been a hotbed of COVID: 81 prisoners 7 staff. "One of the inbound quarantine units had 55 individuals test positive for the virus, which led to a cascade effect people in an adjacent dorm became infected."             Also from Coleman: "unit B-1 56 positive COVID cases  on August 10th (these inmates were sent to USPII for isolation, which manipulated the number of positive cases reported for the low); unit B-2 86 positive COVID cases the week following the b-2 cases; unit B-3 23 positive COVID cases the same week. The total number of positive COVID cases, here at the low, within the last 30 days is 165 inmates..."             FCI- Phoenix-Unknown amount o COVID cases. Only one unit is open under modified operations. No education programming. From Marianna: "  One unit is now off of quarantine with the other still locked down with more positives coming out every week.  Two of the ones that tested positive are in the hospital with one of those on a ventilator."             The virus is making its way north also. From Milan: "I can tell you...a third of the inmates are sick, myself included, and the vaccinated included, we are being ignored, just looking at people and you can see the sickness. Sneezing, coughing, sinus issues, cold sweats, EVERYONE is sick."             From FMC Rochester: We are currently on Code Red status due to the community. We have been locked down since April of 2020... more people sick here than what has been reported, but they only test when someone shows signs and they go to the shu...no one is saying anything. Everyone just wants to go back to normal...Things are not as what them may seem, it is worse." From FPC Duluth: Gym is being converted to a COVID ward for the anticipated surge infections.             If the spread of DELTA in federal prison follows the pattern that the initial COVID surge did, more northern prisons will be seeing a quick increase in cases. “What was in the South is now going to spread due north and then west,” said Peter Hotez, dean of the National School of Tropical Medicine at Baylor College of Medicine. States where Delta variant infections started later in summer have yet to come off their peaks.             "The Delta surge appears to have peaked in Florida and other states that drove the most recent Covid-19 surge, offering some relief after the variant upended what many thought would be a more normal summer. But cases and hospitalizations have been rising in many other states including Kentucky and North Carolina, data show, and public-health experts said the return of unvaccinated schoolchildren to classrooms, cold weather in Northern states and the holiday season could yet give the virus new opportunities to spread.             “I don’t know if we’ve peaked for all time, but the wave that was currently ongoing seems to have crested and is falling in some states but is rising in others,” said Andrew Noymer, an infectious disease epidemiologist and demographer at the University of California, Irvine. The highly contagious Delta variant fueled a rapid increase in cases, often in places where vaccination rates have lagged behind the national average. By Saturday, before the long holiday weekend slowed data reporting, the U.S. was adding about 164,000 new Covid-19 cases a day, according to a seven-day average compiled from Johns Hopkins University data. The average had dipped below 12,000 in June, the data show. Source: U.S. Department of Health & Human Services.                  Be not afraid, and let not your heart be troubled.   Derek Gilna, Director, JD, MARJ, Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana) dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish) federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."